Right or wrong? Is it time to rethink copyright legislation?

This article first appeared in the January issue of Apollo. Click here to preview and buy the issue online.

With images circulating more freely than ever, is it time for copyright legislation to be relaxed – or tightened? Apollo asked a range of senior figures for their perspectives on copyright now

WIM PIJBES
GENERAL DIRECTOR, THE RIJKSMUSEUM

The Rijksmuseum was the first cultural institution to radically change its digital policy. We took the unusual step of offering more than 200,000 high-resolution images from our collection free for everybody to download at no cost. The Rijksmuseum believes that, using the advantages of the internet to share the collection, everyone can participate to bring art anywhere, in any way, into the public domain.

However, museums on both sides of the Atlantic are confronted with restrictions, fear, and protective and conservative minds. With photography widespread, high-end colour printing, even 3D printing, and of course the internet, the possibilities for the production and reproduction of artworks are now endless. The digital revolution has only just begun, yet many laws on copyright date from pre-digital periods. The internet turned 25 last year; it is clear that increased open access is among its core achievements.

The Rijksmuseum offers open access to many works in the collection. General Director Wim Pijbes would like to be able to extend this to works in copyright held by the museum. Image: courtesy the Rijksmuseum

The principle of all copyright law is to protect the author from abuse by other parties on their original idea, invention, work of art: their original creation. That is correct and should be respected. However, the original artwork, not its image, should be protected and saved for future generations. And it should be exhibited in such a way that people truly experience the work of art. This is exactly what museums are for.

Beyond the institution however, museums – as non-profit organisations dedicated to the general public – suffer more and more from a strict copyright policy. The policy is fit to prevent commercial abuse but becomes an obstacle for the free use of art. Different countries have different regulations, and since the copyright lobby in Europe is strong, the European Commission will develop new ideas in the near future. Things won’t get any easier, less expensive or friendlier. On the contrary: they will be more expensive, more bureaucratic and more complex.

In the EC’s labyrinth of regulations and recommendations, lobby groups and politicians have prepared copyright legislation without considering its practical use. Representatives from museums, for instance, were not consulted when new principles for artists’ resale rights were launched. Neither scholars, students, the general public, nor anybody else active in the not-for-profit side of the art world was consulted nor involved. Unfortunately, in EC language the use of artworks is simply reduced to an economic transaction.

If we want to engage a younger and new audience, it’s not enough to offer a small selection of poor low-resolution images. Everyone understands that open access is the future, especially for artworks that belong to the world as part of public collections in museums. And access means publishing collections to the highest standards, technically as well as aesthetically.

It is time to develop a common European strategy and reshape copyright laws to respect the authorship of artists while giving museums and public collections maximum freedom in using and sharing. Limitations and obstructions do not enable creativity. The use of images of any artwork in a public collection in catalogues, publications, posters, invitation cards, websites and so on should be free for the modern connected world. Let us enable people to use their creativity and bring art in new ways into their and our lives.

This is an abridged version of an article that first appeared in the ‘Digital Minds for a New Europe’ series.

GILANE TAWADROS
CHIEF EXECUTIVE, DACS

Copyright has an immense value to artists that extends beyond the financial. It provides them with the ability to control what happens to their work, and for their permission to be sought. All too often, artists discover their work being used without their permission and without any financial compensation. Sometimes, they find their work being used to advertise products or services with which they whole-heartedly disagree or which are diametrically opposed to their views and values.

While money is not the only consideration for artists, it is important: the median wage for a visual artist in the UK today is £10,000 (less than the minimum wage) so it seems only fair that artists are paid a modest fee in the same way that designers, editors and writers are paid.

Artists want their work to be seen but if they can’t continue to sustain themselves and to make work then we all lose out in the long term. Artists use their royalties for a whole range of things, from equipment and materials, to paying for studio space and living expenses. For many artists’ beneficiaries, the cost of looking after an artist’s work after they have died can be considerable. The royalties they receive allows them to preserve, store, insure and catalogue these works. It allows them to take care of works which are part of our national cultural heritage for future generations.

The protection of artists’ rights is constantly being eroded. There are more exceptions to copyright today than ever before and fewer measures to protect artists’ work, especially where it is available online. The UK Government recently introduced an exception to copyright that allows people to make copies of works just for themselves. Where this is adopted in Europe there is compensation in the form of a levy on recording materials – an unnoticeable change to customers – that this government decided against. Artists lose out, but their plight is not felt. Far from being a tipping scale, copyright is more a domino effect: if artists are not valued and supported, then it will become harder and harder for artists to continue to make work. And without art, our world will be a much poorer place.

PHILIPPA MALAS
BARRISTER AND LECTURER IN ART LAW AND BUSINESS, UNIVERSITY OF GLASGOW AND CHRISTIE’S EDUCATION

When William Hogarth petitioned for legislation that would protect engravings of his original works (and his commercial interests) from ‘pirates’, one wonders whether he dreamt that his legacy would stretch into the 21st century. The Engravers Act recognised the rights of authors of artistic works under English law for the first time. Copyright has developed since 1735, yet always appears a step behind the times. Balancing the interests of rights holders against freedom of expression remains difficult, especially as technology eases the swift reproduction and distribution of images.

In 2011, a company that had created an image of a Routemaster bus on Westminster Bridge with the Houses of Parliament in the background claimed that a similar image on packaging for tea infringed its copyright. The photograph was black and white, except for the bus which was left red. The alleged copy was strikingly similar but was taken from a different angle. It was not simple duplication. It was observed that the photograph could have been taken by any number of tourists on a given day. It was then all the more surprising that the court found infringement had occurred, broadening the traditional remit of copyright from protecting the expression of an idea to the idea itself (here the composition). Many commentators expressed concerns that the case went too far.

Richard Prince (and Gagosian Gallery) also battled with copyright infringement proceedings in 2011. Prince had incorporated photographer Patrick Cariou’s images (Yes, Rasta) in to his Canal Zone series. When the case was first heard, the court in New York ordered Prince to give the works over to Cariou for ‘impounding, destruction, or other disposition, as [Cariou] determine[d]’. While the Appeals Court reversed that finding in 2013, stating that Prince’s appropriation gave the images ‘new expression’ with ‘creative and communicative results’, the case demonstrated that within a legal forum, art frequently has a rough ride.

Copyright no longer presents the simple solution that Hogarth might once have hoped, but this is not particular to the art world. The area of law is in need of an upgrade: a daunting task.

THOMAS MARKS
EDITOR, APOLLO

There ought to be clarity over artists’ copyright, but there is a great deal of confusion. A lot of this is accidental: the ease of making and circulating images in the digital age means that there are now many people reproducing works in copyright with no real sense that they might be infringing the law. But some of it is plain infuriating: those museums that continue to assert their copyright on images of works in the public domain, or of which they are not the copyright holder (that is, as the creators of the image), feed into a muddle that obfuscates more important questions of artists’ intellectual property. It is questionable whether provisions established in an era of print are realistic or entirely relevant in a world that is increasingly ‘digital first’, not least because of the many international discrepancies in copyright law.

At Apollo, we work hard to adhere to copyright law in the reproduction of images. Intellectual property is an important principle – not, to my mind, primarily as a revenue stream, but as a means of protecting ‘the permanent expression of ideas’ and safe-guarding against their corruption. But critical freedom is also a vital imperative, as is the opportunity to share and discuss artworks in the public domain. From this perspective, it would be beneficial to have a more open conversation about what constitutes so-called ‘fair dealing’ of images of works in copyright. As images are passed between museums, commercial galleries, auction houses, PR companies and publishers, these words are often bandied around as a way of passing the buck: it would be useful for representatives of these worlds to come together on a regular basis with major rights holders and managers to produce clearer guidelines on this issue.

Another consequence of the digital revolution is that everybody now has a far greater ability to manipulate images, whether by retouching, stretching, or cropping: effects that often infringe the conditions on which copyright is licensed. And these things increasingly percolate into print. Here too, I would encourage both greater clarity and a degree of flexibility. For while some of these techniques are indisputably detrimental to the artwork, cropping in particular may well be appropriate when it comes to elucidating a critical argument. How are we to think in detail without being able to illustrate it?

PEYTON SKIPWITH
EXECUTOR OF EDWARD BAWDEN’S ESTATE

Prior to the Copyright, Designs and Patents Act of 1988, copyright in works of art was hardly ever discussed, except out of courtesy, as there was little or no money involved. Since then, greed on the part of administrators of some of the bigger artists’ estates has often made it prohibitive to reproduce some artists’ work, even in scholarly publications. When Edward Bawden died in November 1989 he made me his executor, with particular charge to administer his copyrights. During the following decade I dealt with about a dozen requests a year, but such is the increase in the popularity of his work I now often deal with that many a week. From the mid 1920s on, alongside his career as a painter, Bawden worked for the London Passenger Transport Board, Fortnum & Mason, Twinings, Faber & Faber, and many others. In pre-war days there was little thought that such material would have a secondary life and copyright was seldom, if ever, discussed: a job was a job. Clarifying copyright ownership now of some of this early work is difficult, but where possible, and the firms are still existant, I have tried to establish a working relationship with the appropriate curators and archivists.

My first priority as executor has always been the promotion of Bawden’s reputation and only secondarily to raise money for his estate. Fortunately his heirs approve of this approach. I look at every application on its merits, assessing whether the request is for commercial purposes and, if so, is the intended use appropriate, or for the use of an image in a proposed publication. Examples range from an elegant umbrella for the Royal Academy to the inclusion of an image of Bawden’s 1937 Kew Gardens poster in MoMA’s book of British Design. Enquiries now come from all over the world – South Korea, Spain, Scandinavia, America – as Bawden’s reputation has spread, particularly through the wide range of books from Malory to Conan Doyle that he illustrated. Copyright on the whole seems to be understood better by publishers and product manufacturers than by museum curators, who often claim copyright on objects long after it has expired or where they merely control access rights to the photographic image.

Click here to buy the January issue of Apollo

The Apollo Inquiry

Monuments Men | How can we protect cultural property at risk across the world?

Attention Seekers | Do touchscreens, apps and the like enrich visitor experience?

The Asian Biennial Boom | How have unconventional spaces shaped artists’ practices in the region?

Art law and attribution | Do art historians and other art authenticators need greater legal protection?

Hard times for the UK’s regional museums? | How have recent funding cuts affected museums?